Opinion
A168341
10-31-2024
GARY R., Appellant, v. LISA J., Respondent.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. D16-00532
BROWN, P. J.
Gary R. appeals from an order denying his request for a restraining order against his ex-wife, respondent Lisa J., under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) (DVPA). He argues that the trial court made an error of law in ruling that making false reports of domestic violence to law enforcement can never constitute abuse under the DVPA, and the court erred by failing to hold a "true evidentiary hearing" on his petition. He further argues that the court improperly awarded attorney's fees to Lisa J. under section 6344. We find no error and affirm.
All further statutory references are to the Family Code unless otherwise indicated.
BACKGROUND
The parties, who were married until 2016, have one son, H.R. The court entered a judgment of marital dissolution in this matter and made custody and visitation orders pursuant to the parties' settlement agreement in 2018.
On March 9, 2023, Gary R. filed a request for a Domestic Violence Restraining Order (DVRO) against Lisa J. He alleged that, on March 1, 2023, Lisa J. made false allegations of domestic violence to the police. Gary R.'s supporting declaration stated that, on March 1, 2023, H.R. was in Gary R.'s physical custody, and he asked his son to do his homework. H.R. refused, immediately left the house, and called his mother, Lisa J. She drove to Gary R.'s house, had H.R. get in her car, drove away, and called the police. Lisa J. told the police that H.R. was in physical danger, four police cars went to Gary R.'s home, and Lisa J. drove back to the home. Police interviewed H.R., Lisa J., Gary R., and Gary R.'s family. Police told Gary R. that Lisa J. insisted that H.R. was in physical danger, but finding no evidence of danger, police returned H.R. to Gary R.
Gary R. also alleged in his petition that Lisa J. had called police with false allegations of child abuse approximately 12 times from 2016 to 2023. In his declaration, he elaborated that Lisa J. had sought a restraining order alleging that Gary R. had intentionally hurt H.R. when the parties divorced. Her allegations were false, and she admitted their falsity when testifying in court. On three other occasions during the divorce, Lisa J. called the police and reported that H.R. was in physical danger after she spoke to H.R. on the phone while he was in Gary R.'s custody. In each instance, police investigated, found that H.R. was not in physical danger, and refused to transfer custody of the child to Lisa J.
Gary R. recounted that Lisa J. had called child protective services three times, alleging that Gary R. abused H.R. Gary R. stated that Lisa J.'s allegations were false, and the agency found them to be unsubstantiated. Gary R. also described one incident in December 2017 when H.R. had a cough while visiting his grandmother with Gary R. At Lisa J.'s insistence, Gary R. took his son to urgent care and then provided Lisa J. with H.R.'s diagnosis of a cough and minor bronchitis. Lisa J. caused the sheriff to be dispatched to Gary R.'s elderly mother's home, the sheriff interrogated Gary R.'s mother, and the sheriff determined that H.R. was not in physical danger.
Gary R.'s declaration stated, "I require a restraining order from this court prohibiting [Lisa J.] from contacting our son [H.R.] while [H.R.] is in my custody in order that I [and my] family may enjoy peaceful custody of [H.R.]." He elaborated at the conclusion of his declaration as follows: "I seek an order prohibiting [Lisa J.] from contacting [H.R.] when [H.R.] is in my custody. [Lisa J.] is free to communicate with [H.R.] when he is in her custody. I have been patient with her antics of speaking to [H.R.], alleging that he is in physical danger, and calling law enforcement or child protective services. While she should have [the] to right to speak to [H.R.] and protect him if he is in physical danger, that right does not grant her unlimited access to make repeated false allegations. [Lisa J.] has forfeited her right to speak to [H.R.] while he is in my custody by repeatedly 'crying wolf.' In order that I may enjoy peace with my family, including [H.R.], [Lisa J.] should be ordered to refrain from calling [H.R.] when he is in my custody."
Pursuant to section 6320.5, the court set a hearing date for Gary R.'s petition, but declined to issue temporary orders. In denying temporary orders, the court found that the facts set forth in Gary R.'s petition did not show reasonable proof of a past act or acts of abuse under the DVPA; the petition did not give enough detail about the most recent incident of abuse; and, "This is not describing acts of abuse for the DVPA but describes a dispute regarding the scope of contacts with custody and visitation."
Lisa J. filed a response disputing the petition's allegations and alleging that, even if true, the allegations did not constitute grounds for a DVRO. She requested attorney's fees and costs on the grounds that the petition was frivolous and solely intended to harass her. In support, she alleged that, in 2018, Gary R. had requested an order to sever telephone contact between H.R. and herself while H.R. was in Gary R.'s custody, which the court denied. She also alleged that, the day before Gary R. signed his DVRO petition, her counsel proposed that the parties attend family therapy to help improve the family dynamic and requested that Gary R. pay past-due child support.
The DVRO Hearing
At a hearing on April 19, 2023, the court confirmed with Gary R. that he still sought a DVRO, and said, "And since this is set for a hearing only on what basis or why are you asking the Court factually to put into place a [DVRO]?" Gary R. stated that he had submitted a memorandum of points and authorities for filing, the court replied that the document had not been filed, and the court asked Gary R. what he would like to do. Gary R. replied that he was unsure what his options were but then said he would like a DVRO based on the declaration he had submitted with his petition and testimony. The court said, "Okay," and asked what testimony he had to offer that day; Gary R. indicated that he would like to call himself and his wife, Kelly R. He also informed the court that he had six exhibits.
At that point, the court said, "Can you tell me factually[,] because I have already placed you under oath, everything you're saying is considered testimony, what basis do you believe warrants putting [into] place a [DVRO]?" Gary R. stated that he "[sought] a restraining order on the basis of disturbing the peace." The court responded, "I understand that is the legal conclusion of the definition of one of the many that qualify for the purposes of abuse under the [F]amily [C]ode. Factually, what facts do you allege or would you like to testify to for the purposes of the Court considering a [DVRO]?"
Gary R. explained that, for the past six years, Lisa J. had spoken with H.R. each evening when he was at Gary R.'s home, "and then frequently, too frequently, after those phone calls [H.R.] [be]comes upset, the mom becomes upset, and she calls the police." He said that police had been summoned to his home more than a dozen times because they were told H.R. was in physical danger. The court observed that the DVRO petition did not include a single police report, and Gary R. responded that he had contacted each law enforcement department. However, "They do not have police reports. They do not have incident numbers. They were called out. They spoke to me. They spoke to my son. And they left. They found that the allegations of abuse were unsubstantiated or unsupported. I requested police reports and they have none."
The court asked Gary R., "And so to tell me again, what is it that you believe, factually, is why you are asking for a [DVRO]." Gary R. replied, "To prohibit [Lisa J.] from contacting our son when he is with me. That is the only thing I ask for because she calls our son and he's upset or she calls him - he calls her when he's upset and she calls the police. The latest incident happened on March 1st." The court asked if there was anything else Gary R. wanted the court to hear, and Gary R. said, "No, Your Honor."
The court then turned to Lisa J.'s counsel and asked her to confirm that her position was that the DVRO request should be denied "because consistent with what was in the application and [Gary R.'s] testimony today, this is not qualifying as abuse as it relates to how abuse is defined under Family Code [section] 6203." Counsel confirmed this and argued for attorney's fees. The court then turned back to Gary R. and asked if he had anything substantive to add and whether he desired to address attorney's fees. He said, "Nothing substantive," and he argued against an award of attorney's fees. After his argument, the court inquired, "Anything further?" Gary R. replied, "No, Your Honor." The court then ruled on the petition and the attorney's fees request.
The court concluded: "The Court is going to find a couple of things. One, this was a hearing only on all of the documents put before us. The Court found and now is continuing to find that what is being requested is not related to domestic violence, it does not qualify for abuse under [the] statute of Family Code [section] 6203. [Gary R.], both in the request for the temporary [order] and here, has failed to put before the Court by [a] preponderance of the evidence what even would qualify in this regard for a temporary order, which is why the temporary order was denied. [¶] The request largely being asked is to make modifications and decisions regarding the custody and visitation order, not what is for [a] [DVRO]. Here, [Lisa J.], as a respondent, is the prevailing party. I do find that the award of attorney fees is appropriate." The court directed Lisa J.'s counsel to prepare the Findings and Order After Hearing (FOAH) "regarding the attorney's fee award." The court asked if there were any questions or clarifications; hearing none, it stated, "With that, there is no temporary order that needs to be terminated. There is no order you need to wait for and we will await the receipt of your attorneys fee [FOAH]."
The court signed the attorney's fee FOAH on May 26, 2023, and Gary R. filed a notice of appeal on July 21, 2023.
The record suggests that the court ruled on the DVRO petition by minute order on the day of the hearing, but that order is not included in the appellate record. The docket does not show that the court or Lisa J.'s counsel provided notice of entry of any such ruling. Thus, even if the court ruled on the DVRO in an April 2023 minute order, Gary R.'s appeal of the order denying his petition for a DVRO is timely (Cal. Rules of Court, rule 8.104(a)(1)(C)), and the parties do not contend otherwise.
DISCUSSION
I. Applicable Law and Standard of Review
Under the DVPA, a court is authorized to issue a protective order" '" 'to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved' upon 'reasonable proof of a past act or acts of abuse.'" '" (Curcio v. Pels (2020) 47 Cal.App.5th 1, 11 (Curcio).) "Abuse" under the DVPA, includes "disturbing the peace of the other party." (§§ 6320, subd. (a), 6203, subd. (a)(4).)" '[D]isturbing the peace'" means "conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party." (§ 6320, subd. (c); In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.) "Thus, section 6320 provides that 'the requisite abuse need not be actual infliction of physical injury or assault.'" (In re Marriage of Nadkarni, at p. 1496.) Courts have nonetheless recognized that a restraining order should not "issue based on any act that upsets the petitioning party. The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals." (Curcio, at p. 13.)
Generally, we review the grant of a DVPA restraining order for abuse of discretion. (In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p. 1495.) "However,' "[a]ll exercises of discretion must be guided by applicable legal principles . . . which are derived from the statute under which discretion is conferred .... [A] discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]" [Citation.] "The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review [citation]." '" (Jan F. v. Nathalie F. (2023) 96 Cal.App.5th 583, 592-593 (Jan F.).)
The party seeking a restraining order bears the burden of establishing by a preponderance of the evidence the circumstances justifying the order. (Curcio, supra, 47 Cal.App.5th at pp. 11, 14.) Where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, the substantial evidence standard of review" 'takes on a unique formulation.'" (Symons Emergency Specialties v. City of Riverside (2024) 99 Cal.App.5th 583, 597.) "Under these circumstances, '"' "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" '" '" (Ibid.) We cannot substitute our factual determinations for those of the trial court and must view all factual matters most favorably to the prevailing party. (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)
II. Jan F.
Gary R. relies heavily on the recent decision in Jan F. to support his claims of error on appeal. We therefore begin with an overview of that case.
In Jan F., Natalie F. petitioned for a DVRO against her exhusband, Jan F., and she filed a supporting declaration with exhibits. (Jan F., supra, 96 Cal.App.5th at pp. 587-589.) She declared that the court had recently suspended Jan F.'s visitation with their children, and since then he" 'ha[d] been increasingly harassing [her], directly and indirectly, to the point that [she] fear[ed] for [her] safety and well[-]being.'" (Id. at p. 587.) She recounted that Jan F. had made seven baseless calls to police for welfare checks in a three-week period, often minutes after the parties' children missed a call from Jan F. (Id. at pp. 588-589.) Natalie F. believed that Jan F. was using the police to harass her and disturb her peace. (Id. at p. 588.) She further explained that she had obtained housing through a domestic violence group, and each time the police called her for the welfare checks, they sought to obtain her address. (Ibid.) Natalie F. feared for her safety if Jan F. obtained her address because he was the perpetrator of the domestic violence, so she would not provide the police with her address. (Ibid.) The court denied temporary orders and held a hearing on Natalie F.'s petition. (Id. at pp. 590-591.)
At the hearing, Natalie F.'s counsel confirmed that her declaration and its exhibits were her supporting evidence for the petition. (Jan F., supra, 96 Cal.App.5th at p. 590.) The court then stated Natalie F.'s evidence was insufficient; the police calls may have criminal ramifications, but they were not "restrainable" under the DVPA. (Id. at pp. 590-591.) Turning to Jan F., the court said," '[I]f you have something to say, I'm happy to listen to it. Although, I just ruled in your favor, and there's no obligation that you say a word. So, . . . if you want to be heard, you can certainly be heard, understanding that you probably don't want to talk me out of ruling in your favor. Yes?'" (Id. at p. 591.) When Jan F. began discussing the police calls, the court interrupted him and said it did not need to hear about the context for the calls. (Ibid.) The court ruled by minute order that Natalie F. did not sustain her burden of proof, and she appealed. (Ibid.)
On appeal, the appellate court found that the trial court had impliedly accepted and credited Natalie F.'s evidence as true and had refused to allow Jan F. to present evidence or testimony. (Jan F., supra, 96 Cal.App.5th at p. 593.) Given the trial court's ruling that Natalie F. had not sustained her burden of proof, the standard of review was"' "whether the evidence compels a finding in favor of the appellant as a matter of law." '" (Ibid.)
Jan F. then found reversible error because, with the trial court's implied finding that Natalie F.'s evidence was true, her evidence regarding Jan F.'s baseless welfare check calls compelled a finding in her favor. (Jan F., supra, 96 Cal.App.5th at p. 593 .) Specifically, "[Natalie F.] presented evidence that [Jan F.] called the [police] and provided false information to have them conduct unnecessary and intrusive welfare checks seven times in a three-week period. She contended these calls were made to harass her and to attempt to obtain her address. [She] feared for her safety if [Jan F.] was able to obtain her address. Further, she believed (and the evidence facially supports) that [Jan F.] was using the [police] to attempt to exercise control over her. [¶] . . . Thus, [Natalie F.] demonstrated abuse within the meaning of the DVPA." (Id. at pp. 593-594.) Because the trial court had prevented Jan F. from presenting evidence or testifying, Natalie F.'s remedy was an evidentiary hearing on remand and not an order directing the trial court to grant her request for a DVRO. (Jan F., supra, 96 Cal.App.5th at p. 595.)
III. Denial of the DVRO
Gary R. contends that the trial court erred in finding that he did not establish abuse under the DVPA, and the court's ruling conflicts with Jan F. Specifically, he claims that the court determined that repeated calls to the police reporting false allegations of domestic violence can never, as a matter of law, constitute abuse in the form of disturbing the peace of the other party under the DVPA. We conclude that Gary R. has not shown reversible error.
Gary R.'s first problem is that he does not affirmatively establish that the court made an erroneous legal determination. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appealed judgments and orders are presumed correct, and error must be affirmatively shown].) The record does not show the trial court ruled that repeated calls to the police reporting false allegations of domestic violence can never constitute abuse under the DVPA as a matter of law. Instead, the record shows that the court understood that disturbing the peace of the other party is abuse, it considered the evidence in Gary R.'s petition and his testimony, and it ruled that Gary R. "failed to put before the Court by preponderance of the evidence what even would qualify" as abuse under the DVPA. As relevant here, "abuse" means conduct or behavior that destroys the mental or emotional calm of the other party. (§§ 6320, subd. (a), 6203, subd. (a)(4).) Properly taken as a whole, the record reflects the court's ruling that Gary R. failed to prove by a preponderance of the evidence that Lisa J. engaged in behavior that destroyed his mental or emotional calm.
Gary R.'s second problem is that his evidence does not compel a finding in his favor. (See Symons Emergency Specialties v. City of Riverside, supra, 99 Cal.App.5th at pp. 596-597, 599600 [no reversible error where party with burden of proof failed to show evidence compelled a finding in its favor].) In his declaration and testimony, Gary R. described Lisa J.'s conduct in some detail. But he also wrote in his declaration that he had "been patient with her antics of speaking to [H.R.], alleging that he is in physical danger, and calling law enforcement or child protective services," and said Lisa J. had "forfeited her right to speak to [H.R.] while he is in my custody by repeatedly 'crying wolf.'" Unlike in Jan F. where the petitioner provided credited and uncontradicted evidence of her fear (Jan F., supra, 96 Cal.App.5th at pp. 588, 593-594), Gary R.'s concession regarding his patience with Lisa J.'s behavior certainly does not compel a conclusion that her behavior destroyed his mental or emotional calm. Nor did Gary R. provide any additional facts in his hearing testimony that would compel such a finding. The trial court could thus reasonably conclude Gary R. failed to establish that Lisa J.'s conduct constituted abuse warranting a DVRO - particularly in light of the infrequency of the alleged calls to law enforcement; the lack of any corroborating police reports; and Gary R.'s candid admission that he had been "patient" in the face of Lisa J.'s actions, a response that falls far short of having his mental or emotional calm destroyed. In sum, Gary R. has failed to establish that the court substantively erred in denying his request for a DVRO.
Gary R. also asserts procedural error - that he was not afforded a "true evidentiary hearing" under section 6320.5 - but the record refutes his claim. Unlike in Jan F., again relied upon by Gary R., the court did not prevent anyone from presenting evidence or testimony. Instead, Gary R. testified and then repeatedly confirmed there was nothing further he wished the court to hear. Gary R. points to the court's comment that the hearing had been "only on all of the documents put before us" to support his claim. However, that comment cannot be read in isolation from the context showing that the court allowed Gary R. to testify. And, considering Gary R.'s discussion with the court regarding unfiled documents at the beginning of the hearing, we agree with Lisa J. that the court was merely clarifying that the only documentary materials it considered were those that were properly before the court. Further, the court showed that it was considering Gary R.' s testimony when it asked Lisa J.'s counsel to confirm her position on the DVRO in light of Gary R.'s application and "his testimony today." Gary R. thus had a full and fair opportunity to present his case at the April 2023 hearing.
Where the court issues an order denying "a jurisdictionally adequate petition for an ex parte order, pursuant to Section 6320, [the order] shall provide the petitioner the right to a noticed hearing on the earliest date that the business of the court will permit, but not later than 21 days or, if good cause appears to the court, 25 days from the date of the order...." (§ 6320.5, subd. (b).)
Gary R. also seems to suggest in a footnote that there was no "true evidentiary hearing" because the court did not demand to hear evidence from Lisa J. We dispose of this assertion with the simple observation that Gary R. bore the burden of proof on his petition. (Curcio, supra, 47 Cal.App.5th at pp. 11, 14.)
IV. Attorney's Fees
Gary R. next briefly asserts that the court erred in granting Lisa J. attorney's fees. Under the DVPA, "After notice and a hearing, the court, upon request, may issue an order for the payment of attorney's fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay." (§ 6344, subd. (b).) We conclude that Gary R. has forfeited this claim on appeal, and that he has failed to establish his entitlement to reversal in any event.
First, Gary R. forfeited his claim by failing to address the proper standard of review in his opening brief and by failing to tailor his argument to that standard of review. (Symons Emergency Specialties v. City of Riverside, supra, 99 Cal.App.5th at p. 598 [failure to tailor arguments to appropriate standard of review forfeited claim on appeal].)" '" '[A]rguments should be tailored according to the applicable standard of appellate review,'"' and' "[f]ailure to acknowledge the proper scope of review is a concession of lack of merit." '" (Ibid.) In his brief argument addressing the trial court's order awarding attorney's fees, Gary R. nowhere mentions that we review such an order for abuse of discretion. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509.)
Next, section 6344 requires that the trial court make an implied or express factual finding (see § 6344, subd. (b)), and we generally review factual findings for substantial evidence (see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1246). However, Gary R. forfeited his substantial evidence claim by omitting an adequate summary of the facts and relevant evidence, supported by citations to the record, in the argument section of his brief. (Id. at p. 1246 [failure to present a fair statement of all facts, accompanied by corresponding record cites, results in forfeiture of substantial evidence argument].) For example, Gary R.'s brief fails to mention or cite to the declaration and billing records submitted by Lisa J.'s counsel in support of her fee request.
Even if we were to disregard these deficiencies, Gary R. fails to persuade us that the court abused its discretion. Gary R. does not support his argument with reasoned legal analysis, making only conclusory statements that his petition was not frivolous and that the court's order was "[o]bviously . . . unfounded" and "patently erroneous." These unhelpful assertions aside, Gary R. fails to explain how, notwithstanding the declaration and billing records submitted by Lisa J.'s counsel, the trial court's fee award was "manifestly excessive," as required for reversal. (Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1509 [" '[A]n experienced trial judge is in a much better position than an appellate court to assess the value of the legal services rendered in his or her court, and the amount of a fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances' "].)
For all of these reasons, Gary R. is not entitled to reversal of the court's order awarding Lisa J. attorney's fees.
V. Appellate Attorney's Fees
Lisa J. has asked this court for an award of attorney's fees under section 6344, subdivision (b) for opposing Gary R.'s appeal. She asks us to determine that she is entitled to a fee award and to remand for the trial court to consider the appropriate amount. We decline this request.
Preliminarily, Lisa J. does not contend that Gary R.'s appeal was frivolous. Instead, she offers only the unsupported contention that appellate fees are "warranted" because Gary R.'s conduct was "clearly intended to abuse, intimidate, or cause unnecessary delay." We are as unpersuaded by Lisa J.'s conclusory assertions as we were by Gary R.'s. (See Cal. Rules of Court, rule 8.204(a)(1)(B) &(C) [each point must be supported by argument and citations to the record]; Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523 [conclusory assertions are ineffective on appeal].)
DISPOSITION
The trial court's order denying Gary R.'s petition for a restraining order under the DVPA and the trial court's order awarding Lisa J. attorney's fees are affirmed. Although she has not established her entitlement to appellate attorney's fees, Lisa J. is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
WE CONCUR: GOLDMAN, J., DOUGLAS, J. [*]
GOLDMAN, J., concurring.
I agree with the majority's conclusion that Gary R.'s (Father's) evidence did not necessarily compel a ruling in his favor. In Jan F. v. Nathalie F. (2023) 96 Cal.App.5th 583 (Jan F.), the mother alleged that, seven times in three weeks, the father made knowingly false requests for police welfare checks for the purpose of harassing her, to try to exert control over her after she refused to respond to his calls or messages, and potentially to obtain her address, causing her to fear for her safety. (Id. at pp. 588-589, 593-594.) That is not the situation here.
First, while Father said that Lisa J. (Mother) called the police or child protective services approximately a dozen times, the calls occurred sporadically over a period of seven years- significantly less of a pattern. Second, while Father said Mother's claims were false, he did not allege that they were knowingly so, or that she was acting maliciously or with an ulterior purpose. According to Father himself, Mother generally called law enforcement after hearing something from her son. Third, while I do not share the majority's view that Father's statement that he had been "patient with [Mother's] antics" is inconsistent with the possibility that the repeated visits from law enforcement destroyed his mental or emotional calm, Father did not claim, for example, that Mother's conduct caused him to fear for his safety, as was the case in Jan F. He offered little more than a conclusory statement that he was seeking the DVRO "[i]n order that I may enjoy peace with my family." Finally, as Father essentially acknowledges on appeal, the order he requested - which would have prohibited Mother from communicating with their son at all while he was in Father's custody - was a somewhat poor fit for the problem Father identified. Although a call between Mother and the son may have preceded most of Mother's reports to law enforcement, Father did not claim that it was the usual result of their communications; over a seven-year period, Mother doubtless spoke to her son many times without incident. While the trial court had the discretion to try to fashion a narrower remedy if it found that Father had otherwise carried his burden, I do not believe Father has established that it was required to do so on this record.
At the same time, even though it does not change the ultimate result, I think the majority should have acknowledged that the trial court's statements were problematic. The court first wrote in its order denying a temporary restraining order that "[t]his is not describing acts of abuse for the DVPA [b]ut describes a dispute regarding the scope of contacts with custody and visitation." At the hearing, the court stated that "what is being requested is not related to domestic violence, it does not qualify for abuse under statute of Family Code 6203. [Father], both in the request for the temporary and here, has failed to put before the Court by preponderance of the evidence what would even qualify in this regard for a temporary order, which is why the temporary order was denied. [¶] The request largely being asked is to make modifications and decisions regarding the custody and visitation order, not what is for domestic violence restraining order." (Italics added.) The court's explanation for its ruling was consistent with its description of Mother's argument in opposition, that "this is not qualifying as abuse as it relates to how abuse is defined under Family Code 6203." (Italics added.) Mother's attorney wrote in the opposition that, "even if true, the allegations do not constitute grounds for a domestic violence restraining order."
In Jan F., the trial court similarly found that the alleged actions "did not constitute abuse under the DVPA" and that some of the relief sought could be obtained "in an upcoming long cause custody hearing scheduled before another judicial officer." (Jan F., supra, 96 Cal.App.5th at p. 586.) In one respect, the trial court's findings in that case were less categorical than here; concerning the father's calls to law enforcement, the court expressly stated: "I'm not saying it's never something that could be used as a form of harassment, but all that being said, I don't- I'm not inclined to restrain any of this conduct under the [DVPA]." (Id. at pp. 590-591.) The trial court further explained that the mother's requests were "within the purview of the pending request for custody and visitation that are set for hearing elsewhere.... But I am not inclined . . . to approach those issues from the point of view of a domestic violence restraining order. I don't find that on this record . . . those activities - while . . . I understand that they're annoying. I think they may be counterproductive. I think that may have other consequences that may be disadvantageous, but they're not domestic violence." (Id. at p. 591.) Both here and in Jan F., the trial courts appeared to conclude that the petitioners had essentially made a category mistake, raising an issue that was properly addressed by a court with responsibility for custody and visitation orders.
The similarity of the trial courts' statements in these cases warrants three observations. First, nothing in the majority opinion purports to disagree with Jan F.'s reasoning on the facts before that court. Second, putting aside whether the trial court here meant something different, nothing in the majority opinion endorses a view that calling the police with a false report that the other parent is placing a child in physical danger cannot "relate" to domestic violence or cannot "qualify" as abuse as defined in the statute. And third, while modifying custody or visitation orders is not the purpose of a DVRO, nothing in the majority opinion indicates that a DVRO should be denied simply because its issuance would effect such a modification. With those observations, I concur in the majority's decision to affirm the trial court's denial of Father's application for a DVRO.
I also agree that Father has not shown that the trial court abused its discretion in awarding fees to Mother. Father argues that his petition was not frivolous, but even if so, Family Code section 6344 also authorizes an award of fees if the respondent shows the petition is "solely intended to abuse, intimidate, or cause unnecessary delay." Mother did offer evidence of an improper purpose, and Father has not addressed it on appeal. As Father notes, the trial court did not separately explain why it awarded fees, saying only that it found an award "appropriate." While some explanation would have been preferable given the important policy considerations at stake, Father's failure to address all of the evidence and argument before the trial court means that he has not shown an abuse of discretion.
Prior to 2023, Family Code section 6344 authorized the court, in its discretion, to award attorney's fees in a DVRO proceeding to "the prevailing party." (Fam. Code, former § 6344, repealed by Stats. 2022, ch. 591, eff. Jan. 1, 2023.) In 2023, the statute was amended to make it easier for petitioners to obtain a fee award - the statute now provides that the court "shall" order fees for a prevailing petitioner - but more difficult for respondents to obtain one; the court "may" order the petitioner to pay fees to the respondent, but "only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay." (Fam. Code, § 6344, added by Stats. 2022, ch. 591, § 2.) While the Legislature sought to retain the deterrent of fees for abuses of the DVRO process, it was evidently also concerned that people would be inappropriately dissuaded from seeking protection if they were at risk of having to pay fees on an unsuccessful, but good faith, petition.
Lastly, I agree with the majority that Mother has not established her entitlement to fees on appeal. At a minimum, given the intervening decision in Jan F. and the ambiguity of the trial court's statements, Father's appeal was not frivolous, and Mother's assertions of an improper purpose on appeal are too conclusory to satisfy her burden.
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.